Legal humor. Seriously.

Appellate Practice

October 30, 2012

I don't know what John Elwood did to the people at SCOTUSblog to get himself sentenced to the task of reviewing the list of cases that the Supreme Court has either relisted or held, meaning it has not yet made a decision whether to grant review in those cases. His column, "Relist (and hold) watch," would ordinarily be about as interesting as its title, at least to people who aren't Supreme Court specialists. But this one is written by John Elwood:

As the rest of Washington’s elite huddled at home yesterday in front of cable news and Three’s Company reruns, the Justices took the bench as usual, issuing orders and pointed oral argument hypotheticals over the howling gales. Proving again that neither snow nor rain nor Frankenstorm will stay your correspondent from his (self-appointed) rounds, here is this week’s edition, now with gale-force bloviation. Brace yourself, readers: Today’s installment is a real snor’easter.

As you can see, John has a talent that has not been dampened by Sandy, and it also refuses to be completely buried even under the weight of unfortunately necessary sentences like this one:

The petition argues that the lower court’s decision conflicts with the “curtilage” rule from United States v. Dunn (1987) and implicates a circuit split with the Ninth Circuit about whether an absent co-tenant’s prior refusal to consent to a search invalidates the consent given by a physically present co-tenant under Georgia v. Randolph.

Did you make it past "curtilage"? If so, that alone probably qualifies you to pass the bar in California, but few could rise to that challenge. You should try, though, because there are gems in (almost) every paragraph.

John is a partner at Vinson & Elkins in D.C. who clerked for Justice Kennedy, and here's a revelation that will not surprise you: he specializes in appellate litigation. He also contributes to The Green Bag law journal, having written several pieces called "What Were They Thinking: the Supreme Court in Revue." Again, these should be dull but are laugh-out-loud funny: "Because of a small glitch in the administration of the oath of office," he wrote in 2008, "the Chief Justice inadvertently swore in Barack Hussein Obama as a third-class Webelo in lower Montgomery County's Den 307." And so on.

I met John (via email) back in 1999/2000 at a time when we were both contributing to the Green Bag; he then had to recuse himself for a while because he went to work for the Justice Department, serving in the Office of Legal Counsel from 2005 to 2009. (As you may recall, the OLC has written some real howlers over the years, but I know John wasn't responsible for those because they really weren't funny at all.) His absence enabled me to horn in on his "year in law" beat to some extent (e.g., this), so maybe I'm writing this partly for that reason. But mainly it's because of stuff like this:

We are done, and none too soon—my whale-oil lamp is guttering. If the kraken that appears to have swum up my street doesn’t do me in, we’ll be back next week for an update that is every bit as scintillating as this one.

See, in the legal profession, you often have to put up with "curtilage," but sometimes you get rewarded with "kraken." (So to speak.) It doesn't happen that often but it's worth noting when it does.

October 24, 2012

The ruling by New York's highest court means that the revenues derived from said dances are taxable, because they are not entitled to the exemption in state law for "dramatic or musical arts performances."

The majority appears to have compared lap dances to ice-dancing routines, which are not entitled to the exemption. The lower court's conclusion that if that's the case, then "women gyrating on a pole to music" are also not exempted, was not irrational, according to the majority. That seems to suggest a fundamental misunderstanding of the concept of a lap dance, although on second thought, maybe it doesn't.

The three dissenters said the majority hadn't focused on the actual words of the law, which uses the phrase "live dramatic, choreographic or musical performance." The term "choreographic performance" means dance, the judge wrote, and certainly these women are dancing. Therefore, the exemption should apply.

Because there are First Amendment issues involved, and because of the close decision, it's entirely possible that a petition for certiorari may be filed with the U.S. Supreme Court. Sadly, the odds that the Court will accept it are low, but I'm keeping my fingers crossed.

September 18, 2012

It seemed worth a second post on Holsey v. Warden (first one here) to mention the dissent's view that the Georgia Supreme Court was wrong to hold that the defendant was not prejudiced by ineffective assistance of counsel at trial. She noted that it was undisputed that Holsey is "borderline mentally retarded" (the State's experts agreed he was not faking) and that he had been abused so severely as a child that neighbors called his home "the Torture Chamber." And she pointed out that rather than investigating and presenting this evidence at sentencing, "Holsey's lead defense lawyer drank a quart of vodka every night of Holsey's trial while also preparing to be sued, criminally prosecuted and disbarred for stealing client funds." In light of these facts, she believed, the state court's finding that Holsey had not been prejudiced was unreasonable and he should have received a new sentencing hearing.

I didn't mention it before so as not to overshadow Judge Edmondson's very good point that (at least with legal work) longer is not necessarily better, but Holsey had been sentenced to death.

To me, that puts a somewhat different light on the fact that Judge Edmondson concurred because he believed that the state court's finding that Holsey was not prejudiced by his lawyer's poor defense was "within the outside border of the range of reasonable." As I said before, not the most resounding endorsement of a decision that will likely lead to an execution.

Holsey would not and should not have gone free—he had a lengthy criminal record and was sentenced to death for killing a deputy sheriff during a robbery. But as the dissent pointed out, all he needed to show on habeas review was "a substantial probability that one juror would not have voted in favor of the death penalty had this evidence been introduced by competent counsel." Even then, this would only have meant, apparently, that Holsey would've been entitled to a new sentencing hearing. That jury might still have sentenced him to death, but at least the evidence would (hopefully) have been presented by a lawyer who stayed relatively sober while preparing for trial, and wasn't also preparing for his own at the same time.

June 08, 2012

... did not, surprisingly, persuade the Fifth Circuit that the district court had erred when it found that his appeal was not taken in good faith and therefore refused to allow him to proceed in forma pauperis (i.e., for free). The panel held (I'm paraphrasing) that whatever it was he was talking about did not sound likely to be a good-faith basis for appeal.

The court was clearly unimpressed by the fact that plaintiff is, or at least purports to be, a Vampsh Black Sheep League of Doom Gardamun Family Circle Master Vampire High Priest. I would at least have given him a hearing just because he threw in a reference to "Family Circle," but that's just me.

Wait -- sorry, I had that confused with "Family Circus." Family Circle he gets no credit for. Dismissed.

May 18, 2012

Understandably, anybody who loses a case (especially a criminal case) is inclined to appeal, even if their arguments are pretty weak and even though every appeal is, statistically, a long shot. I probably shouldn't point this out, but the fact is that there are some cases where it just isn't worth another dime in fees to pay for an appeal, because it's going nowhere.

This was one of those cases.

Special bonus here: the opinion is yet another (intentionally) comical one out of Canada (this time, from the Alberta Court of Appeal).

First, the facts as summarized in the introduction to the opinion:

At about 2:00 a.m. on December 6, 2009, an Edmonton police officer noticed a Jeep leaving the parking lot of a drinking establishment with its lights out. He decided to follow it. As he did, he observed the vehicle drive through three stop signs without attempting to brake. A licence check revealed that the licence plate attached to the vehicle was not registered to it. The officer attempted to stop the Jeep by activating the emergency lights of his marked police car. The driver of the Jeep took no notice of it. The police officer then activated his vehicle’s siren intermittently, but again there was no response. Next, the officer pulled his vehicle alongside the Jeep and shone what was described as an “alley light” into the driver’s compartment of the Jeep. That caught the driver’s attention. The Jeep was brought to a stop.

Next, the trial court's summary of its decision:

Having considered all of the evidence, particularly the driving pattern, most particularly the driving pattern, most particularly the time of night and no headlights and no running lights, passage through not one, not two, but three stop signs, not only without stopping but without slowing, that is, without applying the brakes, whatever, and not responding to [the] lights on top of the police vehicle, not responding to an intermittent siren from approximately a car-length behind, and only responding when the alley light is operative, together with the signs of impairment indicated by the police officer, most significantly to me what he described as a strong odour of liquor on the accused’s breath, I am satisfied beyond a reasonable doubt that the inferences drawn therefrom establish the accused’s ability to operate a motor vehicle was impaired by alcohol, and I convict the accused accordingly.

Do you appeal? Of course! You argue that under the "rule in Hodge's case" the judge erred "in drawing an adverse inference of impairment when other plausible and rational explanations were clearly available."

Well, here's how that went. These are the last two sentences of the intro paragraph above, which (as a good intro should) tells you all you really need to know:

Immediately, the respondent emerged from the driver’s seat of the Jeep and approached the police car declaring: “I’m sorry, I’m sorry, I’m so fucked.” As will be seen from our disposition of this appeal, that was a prophetic statement.

March 21, 2012

The following excerpts are from R. v. Covey (2001), in which the court held Covey was a "vexatious litigant," meaning he can't file further cases without court approval because he has filed so many bogus cases in the past. Note that this appears to be a transcript of a hearing at which the court read out its judgment in the case, not a formal written opinion. This is why certain remarks by Mr. Covey ("The Applicant") appear in the excerpts themselves. They are presumably not part of the court's actual judgment.

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES

[ALSO LORD JUSTICES MAY AND PARKER]

JUDGMENT

1. THE LORD CHIEF JUSTICE: There are before the court two linked applications, the first by Mr Andrew Covey.... [The] issues are: first, whether Mr Covey [has] respectively, habitually and persistently, and without any reasonable grounds, instituted vexatious civil proceedings; [and] secondly, whether the Divisional Court [erred in ruling that he had]....

2. In his application this morning, Mr Covey took the course of stripping off his clothes and throwing water at one member of the court. He has subsequently made oral submissions to the court after giving an undertaking to behave. He has not repeated his misconduct. He has made submissions which have no relevance whatsoever.... However, someone has prepared on his behalf (or he has prepared himself) a detailed [outline] which the court has read.

In case you missed it there, Tip #1 is to remain clothed at all times when before the court. Tip #2 is to refrain from approaching the bench either in person or indirectly by means of some projectile.

Covey claimed he had not been adequately heard by the lower court. The Lord Chief Justice noted that Covey was given all afternoon to argue his case there, but the court was "unsuccessful in [its] attempts to limit Mr Covey's submissions to the afternoon" and let him come back the next day. When the court reconvened at 10 am, Covey presented it with another 60-page brief. The court then "retired to read the document and returned at 10.30 to hear further submissions."

Tip #3: keep it short. Tip #4: if your brief can't keep a reader's attention for more than two minutes per page, you're doing something wrong.

In the lower court, Lord Justice Buxton had also remarked that most of Covey's argument consisted of irrelevant attempts to reopen the underlying disputes in the prior cases. Tip #5 is therefore to focus on the real issue before the court. (Interestingly, there was a difference of opinion as to how many cases he had filed. The opinion mentions 15, but says Covey insisted that "the number of proposed actions had been underestimated by the court" and that there had actually been 54. Tip #6: know when to keep your mouth shut.) Continuing with the judgment, the Lord Chief Justice noted that:

13. Mr Covey's submissions to this court this morning make it only too understandable why Lord Justice Buxton felt it necessary to make those remarks.

14. THE APPLICANT: Get me a jury and see what they say.

Tip #7: do not interrupt the court.

15. THE LORD CHIEF JUSTICE [continuing to read]: His submissions so far as fact was concerned rest upon an assertion of no relevant evidence having been filed.

16. THE APPLICANT: A load of bollocks.

Tip #8: Refrain from using terms such as "bollocks" (unless bollocks are the real issue before the court).

Pressing on, the Lord Chief Justice then noted that most of Covey's cases had been little more than harassment of one particular family, and that at least one restraining order had been issued against him:

23. Mr Covey had been made the subject of a restraining order under section 5 of the Protection from Harassment Act [of] 1997. The order was made on the basis that he had harassed members of the family ... between June and July 1997.

24. THE APPLICANT: Point of order, your Honour. The law was passed on 1 July.

25. THE LORD CHIEF JUSTICE: The order was made --

26. THE APPLICANT: I was out of the country at the time.

27. THE LORD CHIEF JUSTICE: Would you please keep quiet?

28. THE APPLICANT: How can I harass them? I wasn't even in the country.

29. THE LORD CHIEF JUSTICE: Would you please keep quiet or you will have to leave court?

30. THE APPLICANT: I was just picking up on a point of law, that's all. The law was passed on 1 July.

31. THE LORD CHIEF JUSTICE: Mr Covey, would you please keep quiet and not interrupt me?

32. THE APPLICANT: Am I right?

33. THE LORD CHIEF JUSTICE: If you do interrupt me, then you will have to leave court.

34. THE APPLICANT: Please tell this court when the Harassment Act was passed.

35. THE LORD CHIEF JUSTICE: The court is going to adjourn.

36. THE APPLICANT: Fine. The Harassment Act was passed on 1 July. I was out of the country. How can I harass somebody when I'm out of the country? This is a kangaroo court and you are a bent judge.

(The court adjourned for a short time. The applicant left court.)

See Tips #5-8, supra.Tip #9: If accused of harassment, don't harass the judge about the Harassment Act.

You won't be surprised to learn that Mr. Covey lost, but his brave and stupid crusade has at least provided these important lessons. And for that we thank him.

February 08, 2012

First, the case clearly is not properly before the Court, unless they're suggesting Baby Bear filed a cert petition, and there's no constitutional issue here anyway, and no quorum. Second, Justice Sotomayor should be limiting her review to the record below, not hearing testimony from a couple of Muppets who just walk in off the street. Worse, she was apparently about to hear the bear's argument ex parte, if Goldilocks hadn't shown up when she did. Third, what law is she applying? Any? What jurisdiction is Sesame Street in, anyway?

November 08, 2011

Here's one way: a justice asks you whether you have considered "just confessing error in this case."

Another piece of advice: once the number of justices who have told you to drop a particular argument reaches five, you might as well drop it.

In his SCOTUSblog summary of Tuesday's argument in Smith v. Cain, entitled "Disaster at the Lectern," Lyle Denniston describes the ordeal of the assistant DA who apparently drew the short straw and so had to argue the case on behalf of Orleans Parish, Louisiana. The DA's office there has repeatedly been criticized for how it handles prosecutions. In this case, and in a similar one the Court heard last year, the issue was the apparent inability to comprehend (or the ability to ignore) the Brady v. Maryland requirement that the prosecution turn over evidence that may be material to the defense.

In Smith v. Cain, Smith was convicted of murder based solely on the testimony of one eyewitness, despite the fact that the witness had told the police several times that he couldn't ID any of the perpetrators. Or, at least, that fact would absolutely have been material to the defense, and so under Brady it has to be turned over.

Now, there are two ways to go here. One is to argue that, yes, this should have been turned over, but the error was harmless in this case because there was no reasonable probability of a different outcome. The other is to refuse to concede that the evidence was even "material" to the defense to begin with, and that's what the DA decided to do, sticking with this position to the bitter end.

And here's how that went, edited to show representative statements by each justice but roughly in order. Ask yourself at what point you would have dropped the materiality argument:

JUSTICE GINSBURG: How could it not be material? Here is the only eyewitness, and we have inconsistent statements. Are you really urging that the prior statements were immaterial? ... I find that is -- is not plausible.

CHIEF JUSTICE ROBERTS: [I]f you were the defense lawyer you really would like to have that statement where he said: I couldn't identify them.

JUSTICE SCALIA: And not only the only eyewitness but if I understand it correctly the only evidence against the defendant.

JUSTICE KENNEDY: I just have to agree with Justice Ginsburg....I just can't believe that.... And you say that's immaterial. I find that just incredible. ... You're transposing two very different things [materiality and the "reasonable probability" standard]. And so that's incorrect.

JUSTICE BREYER: Is it that you mean immaterial, or ... that it wasn't prejudicial ....? [She seems to say the latter.] Okay. So we can forget the word "material." .... [T]his seems really odd, I mean really unusual that in ... Louisiana they have some kind of system that doesn't turn that statement over to the defense.

JUSTICE ALITO: Could you explain how this -- how this [failing to turn over inconsistent statements by the sole witness] took place?

JUSTICE SOTOMAYOR: Tell me why they didn't on their face constitute Brady materials that needed to be turned over.

So at this point seven justices have criticized your position, and one of the two who hasn't spoken is Thomas, who's not going to. But maybe Justice Kagan will save the day?

JUSTICE KAGAN: Did your office ever consider just confessing error in this case? You've had a bunch of time to think about it. You know? We took cert a while ago. I'm just wondering whether you've ever considered confessing error.

MS. ANDRIEU: Your Honor, we believe that we have an -- an argument that these statements ... are not material.

JUSTICE SCALIA: [M]ay I suggest that you stop fighting as to whether it should be turned over? Of course it should have been turned over. ... Why don't you give that up?

I'm guessing that most of you, if making the materiality argument at all, would have thrown in the towel by the time Kennedy called it "incredible." But Orleans Parish seems pretty committed to not understanding Brady, as this exchange at the end suggests:

JUSTICE SOTOMAYOR: [There have] been serious accusations against the practices of your office .... It is somewhat disconcerting that your office is still answering equivocally on [such] a basic obligation as one that requires you to have turned these materials over, whether it caused harm or not.

MS. ANDRIEU: [I]t should have been turned over. I guess what I was addressing or attempting to address was the materiality prong of Brady.

September 23, 2011

As we have seen, one of the more important legal skills is the ability to get other people to understand what the hell you are talking about. See Order Denying Motion for Incomprehensibility, In re King (Bankr. W.D. Tex. Feb. 21, 2006) (denying "Defendant's Motion to Discharge Response to Plaintiff's Response to Defendant's Response Opposing Objection to Discharge" because court could not "determine the substance, if any," of the argument). In fact, I would go so far as to say it is the most important legal skill.

This guy doesn't have it.

The Seventh Circuit delivered a smackdown this week to an attorney who was repeatedly "unable to file an intelligible complaint" for his client and then filed a largely incomprehensible brief on appeal, asking for multiple extensions of time and then ignoring the new deadlines. The case seems to have involved a conspiracy by officials in Illinois, but that was about all anyone could make of it.

According to the opinion, the original complaint was 52 pages long, which is not off the scale, but asserted 28 causes of action in those 52 pages. Wasn't clear who was allegedly liable for what, and then there was the inclusion of something called a "direct action under [the] U.S. Constitution." Defendants moved to dismiss, and then the extension requests began.

As to one of these, the attorney said he needed more time for "personal reasons." On appeal, he suggested these were medical in nature, including a recent cancer diagnosis, and he has recently claimed he was undergoing chemotherapy. If true, none of this would be funny. Since you are reading it, you can probably guess that I think there are reasons to be skeptical of this claim.

He finally responded to the motions in July 2008. The judge dismissed with leave to amend, giving him a list of mistakes to be fixed and setting a deadline of September 30. On that day, at 10:34 p.m. (less than 90 minutes before the deadline), he asked for another extension. This time, he explained that his computer had been damaged in an earthquake during the summer, while he was in California taking the bar exam. Apparently, it was still broken. According to the court, "the motion recounted [his] strenuous efforts to get the computer fixed":

[Plaintiff's counsel] said he visited Apple "Genius" teams in both Los Angeles and Chicago and took the computer to a "Macspecialist." Though these efforts eventually resolved the immediate problem, he claimed that intermittent data losses persisted. [He] also alleged that he was suffering from bilateral carpal tunnel syndrome, severe back and hip pain, and a serious infection.

Note that if he was suffering from cancer and/or chemo effects at the time, he forgot to mention it.

Anyway, he got that extension - and then missed that deadline too, although, heroically, he did manage to file another motion for extension at 4:59 p.m. - one minute before the deadline. Still, he was given yet another chance. And failed again. The third complaint was full of typos and poorly drafted in all other ways, including the deployment of "a staggering and incomprehensible 345-word sentence." This time, dismissed for good.

On appeal -- well, you can guess what happened. He sought three extensions of time to file his opening brief, each time after the deadline had already passed. Having been given a fourth chance to appeal the dismissal for failure to comply with court rules, he finally filed his brief.

Four days late.

The court not only affirmed the ruling below, it also ordered him to show cause why he should not be suspended from the bar of the court (that should be entertaining), and sent a copy of its opinion to the Illinois Attorney Registration and Disciplinary Commission.

By the way, I checked - this gentleman passed the California bar exam. So he's got that going for him.

April 15, 2011

In considering whether something could be the "worst legal brief" ever filed, we have to recognize that there are different kinds of badness.

Many briefs are filed every year by people who are, evidently, insane. If it is fair to call those "bad," this is not that kind of bad.

Some briefs are filed by people who may be lawyers or may be representing themselves, but simply lack the technical skills necessary to write a good brief. This is also not that kind of bad.

Finally, there are briefs filed by people who appear to be sane and literate, and yet due to lapses in judgment produce a brief that is still bad. This is that kind of bad.

Although it is so far toward the bad end of the scale of bad-judgment badness that it might actually be in its own category.

The brief, which someone sent me directly but was apparently first posted here, was filed last March in the Montana Supreme Court. It seems to follow court rules. There are few if any typos. It even has a consistent theme, which many legal briefs do not have. That's a good thing. Depending on the theme.

Here's the theme of this brief, summarized in this beginning epigram:

"Don't worry about it . . . Like he said, we all do dumb sh*t when we're f*cked up."

(Asterisks added.) A footnote attributes this quote to the wisest of men: Mike Tyson. And not even the real Mike Tyson, but rather Mike Tyson playing himself in The Hangover. If you haven't seen that movie, here's a short summary - the one that comes next in the brief:

In the 2009 movie The Hangover, the ultimate Las Vegas bachelor party goes bad when the groomsmen wake up in their suite at Caesar's Palace with a tiger in the bathroom, a 6-month old baby in the closet, and the groom nowhere to be found. What's more, nobody can remember the previous night's events due to the effects of the alcohol they ingested together with a drug that suppresses memory. While attempting to find the missing groom, the groomsmen discover that they stole the tiger in their bathroom from former professional heavyweight boxer, Mike Tyson, during their drunken revelry. Being no stranger to the problems that can be caused by alcohol, Tyson understands how it can affect one's judgment and forgives them for stealing his tiger.

That is the essence of this appeal.

And that is the essence of this brief. The question presented: whether the jury should have been allowed to consider evidence of appellant's intoxication when evaluating his mental state during the crime. The brief argues that the answer must be yes, because a convicted rapist who once bit somebody's ear off later played himself in a movie and the script of that movie required him to forgive four fictional characters for stealing his tiger because they were drunk at the time.

You see why I'm thinking this gets its own category of bad.

The court was not pleased. Noting that the brief went on to describe the crime in a way that was "needlessly graphic and offensive," by paragraph three the court was already unanimously pissed off. "Appellate counsel's attempts to sugarcoat these shocking events," it wrote, "gives pulp fiction a bad name. His story is as delusional as it is unbelievable, and it is not surprising that the jury didn't buy it." Given the nature of the brief, the rest of the opinion is remarkably restrained. (Yes, it affirms the conviction.)

The brief is too bad to be fully described here. But consider whether you really want to read it, not only for the reasons above but also because, as the court noted, the facts are truly shocking. Because this brief, with its ridiculous theme and almost whimsical tone, was filed in a case in which the appellant had been sentenced to life in prison without parole for a vicious assault on his ex-girlfriend. This, too, is what I mean by "bad."

Again, having a theme is a good idea, and the brief does at least pursue this one consistently. It ends like this:

"Alcohol loosens your tongue, and makes you act, speak, and behave in a way that is not you." [The source for this one? Mel Gibson.] It is no secret that alcohol consumption ... has caused many people to do and say things that they later sorely regret.... Mike Tyson was aware of this in the Hangover and was able to forgive. Similarly, this is something that a jury should be able to consider ... in the courts of the State of Montana.

Remarkable.

The court's opinion is here. The brief itself can only be accessed by clicking directly on the warning label above. I wish you luck.